Court of Appeal for Ontario

Date: 2025-07-29
Docket: M56092 (COA-25-CV-0489)
Judge: L.B. Roberts (Motions Judge)

Parties

Between:
Solmar Inc. and Benny Marotta
Plaintiffs (Respondents/Responding Parties)

and

Stewart Hall
Defendant (Appellant)

and

Centre for Free Expression
Proposed Intervener (Moving Party)

Appearances:

• Mark Donald, for the proposed intervener, Centre for Free Expression
• William C. McDowell and Derek Knoke, for the respondents/responding parties, Solmar Inc. and Benny Marotta
• No one appearing for Stewart Hall, although properly served

Heard: 2025-07-10

Endorsement

Introduction

[1] The proposed intervener, Centre for Free Expression (“CFE”), seeks leave to intervene as a friend of the court under s. 13.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”), in a civil appeal arising out of the dismissal of the motion brought by the defendant, Stewart Hall, under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The responding parties, Solmar Inc. et al., oppose the intervener motion.

Factual Background

[2] The responding parties are property developers. They brought a defamation action against Mr. Hall, because of his internet publication on the social media platform Facebook of his comments and criticisms against the responding parties, specifically in relation to their dealings with municipal officials. Mr. Hall accused the responding parties of corrupt practices, including a history of bribing public officials in exchange for development approvals. In response to demands from counsel for the responding parties, Mr. Hall removed the posts but did not apologize, stating that he would bring a motion under s. 137.1 if the responding parties brought an action against him.

[3] Mr. Hall’s s. 137.1 motion to dismiss the action was dismissed with $89,000 in substantial indemnity costs to the responding parties.

[4] On Mr. Hall’s motion to dismiss the action, the motion judge applied the criteria under s. 137.1 and the governing principles developed by the Supreme Court of Canada and this court. Accepting that Mr. Hall’s Facebook posts were related to a matter of public interest, he found that there were grounds to believe that the posted allegations were defamatory of the responding parties and that there were no grounds to believe Mr. Hall had a valid defence to the action. In the weighing of harms stage of the analysis, the motion judge found that the balance tipped in the responding parties’ favour because the expression took the form of “serious, unsubstantiated accusations against a developer and city councillors rather than an actual critique of a development policy or plan” and was “composed almost entirely of gratuitous slurs”.

[5] With respect to the costs of the motion, the motion judge adverted to the provisions of s. 137.1(8) of the CJA: “If a judge does not dismiss a proceeding under this section, the responding party is not entitled to costs on the motion, unless the judge determines that such an award is appropriate in the circumstances.” The motion judge applied the governing principles developed in this court’s jurisprudence and decided to exercise his discretion to award costs of the motion to the responding parties. He fixed costs “somewhere around the mid-point between the two substantial indemnity figures” of the parties as “the appropriate level under the circumstances.”

[6] On April 21, 2025, Mr. Hall delivered a notice of appeal in which he challenges the motion judge’s factual findings, as well as the motion judge’s application of the required multi-step s. 137.1 analysis, including the weighing exercise under s. 137.1(4)(b). On April 30, 2025, Mr. Hall delivered an amended notice of appeal in which he seeks leave to appeal the substantial indemnity costs order on the grounds that the motion judge erred by departing from the presumption against costs based on his finding that Mr. Hall was motivated by malice and intended to cause serious harm to the responding parties and in awarding costs on a substantial indemnity basis.

[7] The appeal has been perfected. The responding parties’ responding materials are due on August 16, 2025. No hearing date for the appeal has yet been scheduled.

Analysis

(1) Governing Principles

[8] Rule 13.02 of the Rules provides for the intervention of a person as a friend of the court:

[9] “Any person may, with leave of a judge or at the invitation of the presiding judge or associate judge, and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument.”

[10] In determining whether an application for intervention should be granted, the matters to be considered are: the nature of the case; the issues which arise; and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties: Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd., 74 O.R. (2d) 164 (C.A.), at p. 167; Animal Justice v. Ontario (Attorney General), 2024 ONCA 941, at para. 10. In order to meet this test, as this court recently stated in Animal Justice, at para. 11, the proposed intervener usually has to satisfy at least one of the following three criteria:

1. The proposed intervener has a real, substantial, and identifiable interest in the subject matter of the proceedings;
2. The proposed intervener has an important perspective distinct from the immediate parties; or
3. The intervener is a well-recognized group with a special expertise and a broadly identifiable membership base.

[11] Limits to the scope of intervention may also arise where: a perspective or interest is adequately represented without the proposed intervener’s involvement; or where the submissions of the proposed intervener are duplicative of the submissions of others: Animal Justice, at para. 13. The overarching consideration is whether the proposed intervener can be of assistance to the court in providing a different perspective that is not already addressed by the parties: Fair Voting BC v. Canada (Attorney General), 2024 ONCA 619, para 11.

(2) Principles Applied

[12] CFE submits that it meets the test for intervention.

[13] With respect to the first and third criteria set out above, CFE highlights its mandate as a non-partisan research, public education and advocacy centre to inform about the public/societal importance of freedom of expression, and its past court appearances as a well-recognized group that has intervened in matters of public interest, including previous s. 137.1 and freedom of expression cases, before this court and the Supreme Court of Canada.

[14] As for the second criterion, CFE argues that it does not propose to repeat Mr. Hall’s submissions but will offer a different perspective that focuses on the constitutional values underlying freedom of expression. In particular, if granted leave to intervene, it would address the following issues:

a) CFE submits that the motion judge’s approach to the “public interest weighing” stage of the s. 137.1(4)(b) analysis is flawed in that it “fails to respect legislative intent or the Supreme Court’s directions on how to perform that stage of the analysis” by failing to:

i. recognize the value of protecting citizen journalism and public participation on local and political issues;

ii. hold the plaintiff to the requirement to put forward a proper evidentiary basis from which harm arising from the expression can be inferred;

iii. give the chilling effect proper weight as part of the section 137.1(4)(b) analysis, including the serious risk of a chilling effect on citizen journalism and public participation on local and political issues.

b) CFE further submits that there are serious problems arising from the motion judge’s costs decision under ss. 137.1(7) and 137.1(8) in light of the goals of the anti-SLAPP legislation.

[15] I am persuaded that CFE has met the first two criteria – its mandate as a public interest group on matters of freedom of expression, as well as its clear interest in any case involving issues of freedom of expression are clear. Indeed, if those were the only criteria, it would be difficult to see when CFE would not be allowed to intervene in any case involving issues of freedom of expression.

[16] Intervention, however, is to be granted sparingly and only where it can be of real assistance to the court: Fair Voting, at para. 10; Stolove v. Waypoint Centre for Mental Health Care, 2025 ONCA 246, para 5. While constitutional cases may provide a larger scope for intervention, this is not the case for private disputes, even disputes that have public interest components, like the present one: Oakwell Engineering Limited v. Enernorth Industries Inc., para 10. To permit otherwise would run the risk of unnecessarily expanding the focus of every civil, private dispute beyond the issues that the parties have chosen to frame their dispute. Every s. 137.1 motion involves issues of freedom of expression; however, they are determined on the particular facts of each case. As I noted in Baldwin v. Imperial Metals Corporation, 2021 ONCA 114, para 3, “[w]hat constitutes ‘a useful contribution’ will depend on the circumstances of the case”.

[17] Given its mandate, it is not surprising that CFE wishes to intervene and offer its own perspective on this issue. I have no doubt that its submissions would be informed and articulate. However, that is not the test for intervention. CFE is proposing to expand and reframe some of the issues in this case beyond the pleaded issues, which is unnecessary for the motion’s proper adjudication. This would provide a distraction from the real issues between the parties and serve only to increase costs.

[18] I may have come to a different conclusion if the motion judge’s approach had deviated from the now well-articulated analytical framework for s. 137.1 motions, including the question of costs, or purported to establish a new analytical approach. That does not appear to be the case here. The motion judge referred to and followed the statutory framework under s. 137.1, as well as the governing principles applying that framework as set out by the Supreme Court of Canada and this court. I do not read the motion judge’s reasons as revealing a different approach to the s. 137.1 analysis. Nor is the subject matter of the case – disputes between developers and publicly interested citizens – a new one. Indeed, the same subject-matter underlay the seminal s. 137.1 decision, 17044604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22.

[19] Similarly, although CFE submits that its perspective is different, many of its submissions essentially repeat Mr. Hall’s submissions: namely, they take issue with the way the motion judge applied the s. 137.1 test, for example, that he failed to give proper weight to certain factors and made findings without a proper evidentiary basis. These submissions are thus unhelpful to the resolution of the appeal: Oakwell Engineering Limited, at para. 11, citing Stadium Corp. of Ontario Ltd. v. Toronto (City), 10 O.R. (3d) 203 (Div. Ct.), p. 208.

[20] For these reasons, I am not persuaded that CFE should be permitted to intervene in this case.

Disposition

[21] The motion for intervention is dismissed without costs.

“L.B. Roberts J.A.”